11 Dec 2015

A recent decision of the Delhi High Court has created quiet a storm in country, particularly among the political circles. This decision dismissed the petition [filed under Section 482 of Code of Criminal Procedure] filed by senior Congress party officials. The petition was filed against an order passed by the Criminal Court directing proceedings to be initiated in a criminal case alleging cheating on the part of these officials.

The High Court has essentially held that, on a prima facie basis, the order of the Criminal Court is essentially based on documentations relevant for such direction and therefore there is no reason for the High Court to exercise its discretion and extraordinary power to quash the proceeding initiated by the Criminal Court. For the benefit of our readers we have uploaded the decision of the High Court.

While the decision of the High Court is largely on discussion of facts and the legal position relating to discretion being exercised in such cases by the High Court, we have sought to cull out some of the excepts relevant to the national polity and in general relating to corruption, which are as under;

"1.
Probity of a legendary National Political Party is under scanner in these
petitions. This case is one of its own kind. The complainant claims to be a
public spirited person, who wishes to expose cheating, criminal breach of trust
and criminal misappropriation in high places with a view to protect general
public interest. In an attempt to do so, recourse to criminal law is sought to
be made. The complainant, who is a respondent herein, is a Parliamentarian, who
claims to have been a Member of Parliament for five times and his credentials
are highlighted in the impugned order. The respondent-complainant claims to be
champion in leading crusade against corruption. This time, he has sought to
expose cheating, fraud, criminal misappropriation, etc., by Office Bearers of
the Congress Party who also happen to be the members of a Private Company-Young
Indian Private Company (hereinafter referred to as Y.I.) and major
shareholders of Associated Journals Private Limited (hereinafter
referred to as AJL), which was engaged in publishing of newspapers including
National Herald, etc..

…

28.
The respective stand taken by both the sides needs to be considered in view of
the fact that in a democratic set up, how a Political Party of national stature
acts is everybody’s concern. Rather, it is a matter of serious concern as allegations
of fraud, etc. are levelled against the Congress Party, who has ruled the
Nation for many decades. Precisely, it is the act of Office Bearers of Congress
Party and their associates which is under scanner in this case.

…

31.
In the instant case, it cannot be disputed that the Office Bearers of the
Congress Party are the trustees of the funds belonging to the Party. No doubt,
a Political Party can have income from other sources as well and can invest
money in mutual funds, etc., to augment its resources. However, it has to be
kept in mind that the allegations against the Office Bearers of the Congress
Party are of siphoning off the party funds in a clandestine manner. The impropriety of extending
interest free loans to a separate legal entity i.e. AJL, which is a Public
Limited Company, by the Congress Party is a matter of concern in a democratic
set up, particularly, when the source of Congress Party’s fund is largely from
donations given by public and so, any citizen can legitimately question the
siphoning off funds by Political Party. What crops up in the mind of a prudent
person is as to where was the need of extending interest free loans to a Public
Limited Company engaged in a commercial venture of publishing newspapers.

32. Considering the fact that AJL has sizeable assets of `2000 crores, it needs to be explained by petitioners as to
what was the need to assign the huge debt of `90
crores when this debt could have been easily liquidated by AJL from its
sizeable assets. Even writing off such a huge debt by the Congress Party can
legitimately attract allegations of cheating, fraud, etc.. Petitioners had gone
step further in conspiring to get this huge debt assigned to a Special
Purpose Vehicle i.e. Y.I. and thereafter, to hijack AJL via Y.I.. Such
grave allegations levelled against petitioners cannot be brushed aside lightly
by relying upon judicial precedents cited, to conclude that the ingredients of
the criminal offences alleged are lacking. To say the least, to do so would be
preposterous. Such a prima facie view is being taken in view of the fact
that the assignment of the huge debt by Congress Party to Y.I. was for a paltry
sum of `50 lacs. This is certainly
questionable and justifiably attracts the allegations of cheating,
misappropriation, criminal breach of trust, etc.. Such a view is being taken as
it needs to be explained before the trial court as to how the net worth of AJL
can be negative when it has assets worth crores of rupees. It also crops up in
the mind of a prudent person as to why interest free loan was assigned and why
it was not written off. In any case, writing off such a huge debt by a legendry
Political Party is indeed questionable. Instead of adopting such a questionable
course, what was done by the Congress Party is more questionable. It also needs
to be answered as to why the genuine shareholders were marginalized in the
Extraordinary General Meeting, which was attended by just seven shareholders.
Such a questionable conduct of petitioners certainly invites allegations of
committing the offences for which petitioners have been summoned. Is it not
criminal misappropriation of Congress Party’s funds? This aspect needs to be
addressed after respondent-complainant is cross-examined at the pre-charge
stage. It also needs to be examined at pre-charge stage as to whether lacs of
citizens who had donated to the Congress Party felt cheated by assignment of
such a huge debt to Y.I. who was managed by none others than petitioners, who
were Office Bearers of Congress Party as well as Directors of Y.I.. Not only
this, the main persons, who were instrumental in allegedly siphoning off
political funds were the recipients of the assignment of the huge debt by the
Congress Party and they were the same persons, who had clandestinely acquired
the control of AJL. All this smacks of criminality. What species of criminal
offence is made out is not required to be seen at this initial stage.

…

38.
This Court is of the considered view that the gravity of the allegations
levelled against petitioners has a fraudulent flavour involving a national
Political Party and so, serious imputations smacking of criminality levelled
against petitioners need to be properly looked into."

7 Nov 2015

Browing through the autobiography of Justice M.C. Chagla - Roses in December - we came across his views on the legal professionals. The words, which form the backdrop and fulcrum of the duty of Advocates, in our view are a must read for each and every professional in the field. So that we do not miss out in any part of it, each word being of vitality, we reproduce the relevant part the way it appears in his autobiography.

The Motivation !!!

Rule 46 of the 'Standards of Professional Conduct and Etiquette' prescribed by the Bar Council of India requires that "Every advocate shall in the practice of the profession of law bear in mind that any one genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it fully or adequately and that within the limits of an Advocate’s economic condition, free legal assistance to the indigent and oppressed is one of the highest obligations an advocate owes to society."

Sharing this "vision for a better-world" and serving to the Humanity, this blog is a small attempt by a group of like-minded lawyers to spread the word on "LAW" across the society.

Disclaimer:

In any event, no part of the information published on this blog is intended to be served or considered as legal advice. The publishers shall not be liable for any action taken on the basis of information published on this blog.

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